San Francisco transit blocks cellphones to disrupt protest

Originally published August 13, 2011 at 5:32 pm

Updated August 13, 2011 at 7:46 pm

Nick Sabatasso checks his cellphone while waiting for a BART train in San Francisco Saturday.

A decision by San Francisco Bay Area transit officials to cut off cellphone service at some of it stations to stave off a protest drew angry response Saturday from one transit board member who said she was shocked that officials acted as "this type of censor."

SAN FRANCISCO — An illegal, Orwellian violation of free-speech rights? Or a smart tactic to protect train passengers’ safety?

The question reverberated Saturday in San Francisco and beyond as details emerged of Bay Area Rapid Transit (BART) officials’ decision to cut off underground cellphone service for a few hours at some stations Thursday. Commuters at stations from downtown to the city’s main airport were affected as BART officials sought to thwart a planned protest over the recent fatal shooting of a 45-year-old man by transit police.

Two days later, the move had civil-rights and legal experts questioning the agency’s move and drew backlash from one transit-board member who was taken aback by the decision.

“I’m just shocked that they didn’t think about the implications of this. We really don’t have the right to be this type of censor,” said Lynette Sweet, who serves on the BART board.

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Similar questions of censorship have arisen recently as Britain’s government put the idea of curbing social-media services on the table in response to several nights of widespread looting and violence in London and other English cities. Police claim that young criminals used Twitter and BlackBerry instant messages to coordinate looting sprees during the riots.

Prime Minister David Cameron said the government, spy agencies and the communications industry are looking at whether there should be limits on the use of social-media sites such as Twitter and Facebook or services such as BlackBerry Messenger to spread disorder. The suggestions have met with outrage, with some critics comparing Cameron to the despots ousted during the Arab Spring.

In the San Francisco instance, Sweet said BART board members were told by the agency of its decision during the closed portion of its meeting Thursday afternoon, less than three hours before the protest was scheduled to start.

“This is a land of free speech, and for us to think we can do that shows we’ve grown well beyond the business of what we’re supposed to be doing, and that’s providing transportation. Not censorship,” Sweet said.

But was it censorship? Channels of communication were cut off for everyone at a given station, not just those whose speech the transit authority was trying to impede.

Beyond that, there are legal nuances to consider, including whether under the law BART is considered a government agency, a key component in deciding if censorship was involved.

BART Deputy Police Chief Benson Fairow said that, for his agency, the issue boiled down to public safety. “It wasn’t a decision made lightly. This wasn’t about free speech. It was about safety,” Fairow told KTVU-TV on Friday.

But as in London, BART’s tactic drew immediate comparisons to authoritarianism, including acts by the former president of Egypt to squelch protests demanding an end to his rule. Authorities there cut Internet and cellphone services in the country for days this year. He left office shortly thereafter

“BART officials are showing themselves to be of a mind with the former president of Egypt, Hosni Mubarak,” the Electronic Frontier Foundation (EFF) said on its website. Echoing that comparison, vigorous weekend discussion on Twitter was labeled with the hashtag “muBARTek.”

Michael Risher, the American Civil Liberty Union’s (ACLU) Northern California staff attorney echoed the sentiment in a blog: “The government shouldn’t be in the business of cutting off the free flow of information.” Others said that while the phone shutdown was worth examining, it may not have impinged on First Amendment rights. Gene Policinski, executive director of the First Amendment Center, a nonprofit educational organization, said freedom of expression can be limited in very narrow circumstances if there is an immediate threat to public safety.

“An agency like BART has to be held to a very high standard,” he said. “First of all, it has to be an immediate threat, not just the mere supposition that there might be one. And I think the response has to be what a court would consider reasonable, so it has to be the minimum amount of restraint on free expression.”

He said if BART’s actions are challenged, a court may look more favorably on what it did if expression was limited on a narrow basis for a specific area and time frame, instead of “just indiscriminately closing down cellphone service throughout the system or for a broad area.”

University of Michigan law professor Len Niehoff, who specializes in First Amendment and media-law issues, found the BART actions troublesome for a few reasons.

He said the First Amendment generally doesn’t allow the government to restrict free speech because somebody might do something illegal or to prohibit conversations based on their subject matter. He said the BART actions have been portrayed as an effort to prevent a protest that would have violated the law, but there was no guarantee that would have happened.

“What it really did is it prevented people from talking, discussing … and mobilizing in any form, peaceful or unpeaceful, lawful or unlawful,” he said. “That is, constitutionally, very problematic.”

The government does have the right to break up a demonstration if it forms in an area where protests are prohibited and poses a risk to public safety, Niehoff said. But it should not prohibit free speech to prevent the possibility of a protest happening.

“The idea that we’re going to keep people from talking about what they might or might not do, based on the idea that they might all agree to violate the law, is positively Orwellian,” he said.

BART officials maintained the cellphone disruptions were legal. In a statement, they said it’s illegal to demonstrate on the platform or aboard the trains, and the agency has set aside special areas for demonstrations.

“We had a commute that was safe and without disruption,” BART spokesman Jim Allison noted.

Associated Press reporters Tom Murphy in Indianapolis; Gene Johnson in Seattle; Jonathan Cooper in Portland, Ore.; and Cassandra Vinograd and David Stringer in London contributed.